186 P. 36 | Or. | 1919
During the progress of this litigation concerning the custody of the child, the plaintiff married another husband.
The testimony was heard and the case taken under advisement on February 11, 1919. The decree was rendered, as stated, June 12, 1919. Although the plaintiff had testified that she had no home and that on account of her husband’s being in the army they could not have a permanent residence, the court recited that it appeared to its satisfaction “that the plaintiff has a home established in Portland, in the county of Multnomah, State of Oregon.” As narrated in the brief of the plaintiff, some affidavits are filed in this court to the effect that after the hearing of the case below she established herself in a home at 535 East Nineteenth Street in Portland; that the defendant had separated from his wife, and that the nurse he had had in charge of the child had left his employment.
“This is an appellate court, constituted and organized to revise and correct the proceedings of the trial court, when regularly brought before it by appeal, and has no original jurisdiction, except such as may be incidental to and in aid of its appellate powers. * * Its inquiry is ordinarily confined to an examination- of the record of the court below as embodied in the transcript, but where the appellant has, by some act of his, subsequent to the rendition of the judgment or decree appealed from, waived the right of appeal or otherwise terminated the controversy, such fact may be shown by evidence dehors the record, and the appeal will be dismissed because there is no longer any substantial controversy between the parties. * * But, where the relief sought is based on newly discovered evidence, the remedy is not by motion in this court, but by an original suit to vacate or annul the decree. * * The facts upon which the motion in question is based are in the nature of newly discovered evidence, and the inquiry presented involves the consideration and decision of controverted questions of fact. The plaintiffs deny that any settlement of the subject matter of the litigation was ever made by them with Johnson. This question cannot be tried out on ex parte affidavits in this court, and the defendant’s remedy, if any, must be found in some other proper proceeding.”
So here, if any change in the affairs of the parties here involved has occurred since the hearing in the
“Henceforth the rights and responsibilities of the parents, in the absence of misconduct, shall be equal, and the mother shall be as fully entitled to the custody and control of the children and their earnings as the father.”
Primarily, therefore, under our statute, the parents have equal rights to the custody of their children. Where this is in dispute it is ’ universally conceded that the controlling consideration, paramount above all others, is the welfare of the child. It is not a chattel like pigs, chickens or furniture, to be divided betweeh the divorce litigants on the basis of monetary value; neither is its custody to be made the vehicle for a continuation of their antagonisms and resentments toward each other. It is a matter of almost tragic regret that parents should break up their home by their bickerings and deprive their child of that nurture and admonition that congenial parents can give. But such things happen, and out of the wreck the courts must do the best possible under the circumstances for the welfare of the offspring. The preferences of the parents, whether founded in spite or in real affection, must yield to the best interests of the child. The authorities are practically unanimous on this subjeét. The principle is conceded in the
“It is fundamental doctrine that a matter, including all phases which are or should have been brought to the consideration of the court, which has been once litigated and passed into judgment or decree, must be considered as settled beyond recall. The rule and the reason for it spring readily to the mind of every lawyer. And the rule has application to divorce cases, and to matters collateral thereto, equally with all other cases, save that as authorized by the statute, and as dictated by that tender solicitude for the welfare of children by which the courts should ever be actuated, a change may be made, whenever adequate cause arising out of changed conditions shall be made to appear.” (Citing many authorities.)
We need not go far afield to sustain this principle, for it is settled by Section 756,. L. O. L., reading in part thus:
“The effect of a judgment, decree or final order in an action, suit or proceeding before a court or judge thereof of this state or of the United States, having jurisdiction to pronounce the same, is as follows:—
“1. In case of a judgment, decree or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political or legal condition or relation of a particular person, the judg*254 ment, decree or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person.”
The order of February 3, 1913, therefore, granting the exclusive custody of the son to his father, the defendant, was final and conclusive in the absence of' an appeal therefrom and can be changed or superseded only by a showing that for some reason the father is not competent to care for the child or that some condition has arisen rendering his further care and custody by the father inimical to the child’s welfare.
Both parties are amply able financially to provide for the welfare of the child. The defendant maintains a home in a very respectable neighborhood in Portland and is shown to be surrounded by excellent people. The boy’s playmates mainly live in that neighborhood and his friends are there. Even the mother says:
“Mr. Merges is abnormally fond of the child. I have never at any time denied that he was abnormally fond of the child. In fact, it is almost a mania.”
She says, too, that the child is afraid of his father. But she is utterly alone in this statement. No other witness or affiant says anything of the kind. The consensus of those who have spoken on that subject, except herself, is that father and son are extremely fond of each other and that the control of the father over the son is by means of affection and not force. To sum up on this point, it is plain that since the decree of February 3, 1913, no material change has occurred in the father’s ability or inclination to care for the child in the best possible manner. If he was fit then to have the care of the child, he is fit now. The mother voluntarily relinquished the custody of the child. Her voluntary absence from the state and her marriage to her present husband do not detract from the finality of the former decree or depreciate the excellence of the defendant as a caretaker for his son. At least, they do not turn the scale in her favor or aid her in her effort to show that new conditions have arisen requiring a change of custody for the minor. To take him from the devoted care of his father, under whose tutelage he has been for seven years, with such excellent results in the child’s con
Thus far we have proceeded upon the consideration of the best welfare of the boy, relegating to a secondary place the preferences and caprices of the parents, whether they amount to mere captious and quarrelsome contentions or whether they are founded in sincere love for the child. The father ought not to be deprived of the society of the son upon whom he is lavishing such a wealth of affection. No matter what the conduct of the plaintiff may have been, we cannot attempt to quench the flame of maternal love which exists in every mother’s heart, and she ought to be privileged to see the child and visit with him. Some reasonable concession ought to be made in that direction. As a working basis, therefore, upon which the parties shall act, a .decree will be entered to the effect that the custody of the child shall be given to
Reversed. Decree Rendered.